ARTICLE
WIND AND WISDOM
Victoria Sutton*
I. WIND POWER REQUIRES WISDOM ............................................
346
II. THE PROSPECT OF DEVELOPING WIND POWER .......................
347
III. THE DISPROPORTIONATE IMPACT ON BIRDS OF PREY ........... 349
IV. THE DISPROPORTIONATE IMPACT ON TRIBAL NATIONS:
GOOD OR BAD? ............................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 352
V. TRUE COLLABORATION: WIND POWER AS A MAJOR FORCE
ON TRIBAL NATIONS' LANDS ..............................................
354
VI. CAN SPIRITUAL, CULTURAL AND ENVIRONMENTAL
CONCERNS BE VALUED WITHIN ANGLO-AMERICAN
LEGAL CONSTRAINTS? ......................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 358
A. The Significance of Place:
Looking at Wind and Birds .........................................
B. Utilizing the Statutory and Executive Order Tools
for Addressing the Complexity of Environmental,
Spiritual and Cultural Issues .....................................
C. Trust Responsibility ....................................................
*
359
362
365
Victoria Sutton is the Robert H. Bean Professor of Law at Texas Tech
University School of Law. She has a Ph.D. from the University of Texas at Dallas in
Environmental Sciences, and a J.D. from American University magna cum laude. She is a
member of the Lumbee Indian Nation. The author would like to thank Rebecca Tsosie,
Professor of Law, Sandra Day O'Connor College of Law, Arizona State University, and
Robert A. Williams, James E. Rogers College of Law, University of Arizona, for their
insightful comments and suggestions, as well as their interest in this research.
345
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VII. SPIRITUALITY AND CULTURAL CONCERNS ARE NOT TO BE
OVERCOME, BUT EMBRACED IN A COLLABORATIVE
EFFORT: CITING FAILURE? ........................
. ...... ....... ...... .....
VIII. CONCLUSION .......................................................................
366
370
You have noticed that everything an Indian does is in a
circle, and that is because the Power of the World always
works in circles, and everything tries to be round .... The
Sky is round, and I have heard that the earth is round like a
ball, and so are all the stars. The wind, in its greatest
power, whirls. Birds make their nests in circles, for theirs is
the same religion as ours .... Even the seasons form a great
circle in their changing, and always come back again to
where they were. The life of a man is a circle from childhood
to childhood, and so it is in everything where power moves.
Black Elk', Oglala Sioux Holy Man
1863-1950
I.
WIND POWER REQUIRES WISDOM
Native American spirituality and cultural values teach that
wind is an essential part of the environment and that
humankind is part of, not separate from, this environment.
Indeed, all parts of our world, including birds, plants, rocks,
wind, and the seasons, are spiritually important and embody the
complexity of this interrelationship.
Although there have been efforts to consider spiritual,
cultural, and environmental concerns of tribes in decision
making, it is questionable whether these efforts have been
meaningful. In part, reliance upon Anglo-American law as the
framework for federal action has proven inadequate to address
tribal concerns and has fallen short of the process needed for true
collaboration with tribes. This misplaced reliance is part of the
colonization legacy and the federal government's relationship
with tribal nations.
The larger scale commercialization of wind power is, in
many ways, still in its formative stages and depends on
subsidization from the federal government.! Currently more than
1.
See First People, Black Elk-Oglala
Sioux, http'J/www.firstpeople.us/
FP-Html-Wisdom/BlackElk.html (last visited Aug. 23, 2006).
2.
Jon G. McGowan & Stephen R. Connors, Wind Power: A Turn of the Century
Review, 25 ANN. REV. OF ENERGY & THE ENV'T 147, 173 (2000), available at
HeinOnline -- 1 Envtl. & Energy L. & Pol'y J. 346 2005-2007
2007]
WIND AND WISDOM
347
fifty percent of Native American tribal land is targeted by the
federal government for wind energy development! Thus,
environmental justice4 suggests that more attention should be
focused on the problems of potentially leaving tribes with
unproven technologies, a lack of subsidies to sustain their
investment, and lost investments that become worthless. After
all, populations like tribal nations may be the least capable of
dealing with this type of rapidly evolving technology. Finally,
because wind power is seen as environmentally friendly
technology, federal policy suggests a sweeping generalization
that wind energy, therefore, must be compatible with Native
American culture. This stereotyping, a form of environmental
racism,5 may predetermine the acceptability of this technology
before fully and fairly engaging tribal Nations, thereby not
allowing them to determine whether the technology is truly
compatible with their spiritual, cultural, and environmental
values.
II. THE PROSPECT OF DEVELOPING WIND POWER
The United States energy policy promotes the use and
support of renewables, which include geothermal, biomass, wind,
and solar energy resources.6 This policy notes that growing
http://arjournals.annualreviews.org/doi/pdf/10.1146/annurev.energy.25.1.147
(by subscription; on file with author).
3.
U.S. DEP'T OF ENERGY, WIND ENERGY PROGRAM MULTI YEAR TECHNICAL PLAN
FOR 2004-2010 23 (2003), available at http://manhaz.cyfgov.pl/manhaz/links/
USDOE-energy-efficiency+renewabletechnologies/mytp-nov_2003.pdf
[hereinafter
TECHNICAL PLAN].
4.
"Environmental Justice is the fair treatment and meaningful involvement of all
people regardless of race, color, national origin, or income with respect to the
development, implementation, and enforcement of environmental laws, regulations, and
policies."
See
U.S.
Envtl.
Prot.
Agency,
Environmental
Justice,
http://www.epa.gov/environmentaljustice/index.html (last visited Sept. 7, 2006).
5.
Environmental racism is defined in two ways. It can be "racial discrimination in
environmental policy making and the unequal enforcement of environmental laws and
regulations... the deliberate targeting of people of color communities for toxic waste
facilities and the official sanctioning of life-threatening presence of poisons and pollutants
in people of color communities.'" Michael Fisher, Environmental Racism Claims Brought
Under Title VI of the Civil Rights Act, 25 ENVTL. L. 285, 289 (1995)
(quoting Environmental Racism: Hearings Before the H. Subcomm. on Civil and
Constitutional Rights, 103d Cong. (1993) (testimony of Dr. Benjamin F. Chavis, Jr.)).
Alternatively, it is "any policy, practice, or directive that, intentionally or unintentionally,
differentially impacts or disadvantages individuals, groups, or communities based on race
or color; as well as the exclusionary and restrictive practices that limit participation by
people of color in decision-making boards, commissions, and staffs." Fisher, supra,
at 289-90 n. 17 (citing Alice L. Brown, Environmental Justice: New Civil Rights Frontier,
in ENVTL. L. UPDATE 1993 (PLI Litig. & Admin. Practice, Course Handbook Series No.
813, 1993) (quoting Robert Bullard)).
6.
See NAT'L ENERGY POLICY DEV. GROUP, RELIABLE, AFFORDABLE,
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[1:2
demand for electricity in the U.S. will require an additional
393,000 megawatts ("MW") of generating capacity within the
next twenty years.7 Wind is the fastest growing renewable energy
resource, although the U.S. has lagged behind countries like
Denmark and Germany in wind development because of erratic
U.S. support for wind power in the 1990s.' Wind power promises
to slow the levels of air pollution and carbon dioxide emissions
from the fossil fuel burning that it replaces. But, in order to
utilize wind power, its generation cost must still be subsidized, a
role often assumed by the federal government.9 It should
therefore not be surprising that Secretary Gale Norton noted
that twenty percent of wind power was generated on lands
managed by the Department of the Interior.' °
Wind power is not without its own environmental impacts,
many of which are severe." Among these impacts is the noise,
often a constant sixty-five decibels, created by the turbines when
the wind is blowing.1 2 Unfortunately, the noise that is so
AND ENVIRONMENTALLY SOUND ENERGY FOR AMERICA'S FUTURE, at xiv, 1-1 (2001),
available at http://www.whitehouse.gov/energy/National-Energy-Policy.pdf.
7.
Id. at 1-4.
8. See Mark Detsky, The Global Light: An Analysis of International and Local
Developments in the Solar Electric Industry and Their Implications for United States
Energy Policy, 14 COLO. J. INTL ENVrL. L. & POLY 301, 308 (2003). See also ENERGY INFO.
ADMIN., POLICIES TO PROMOTE NON-HYDRO RENEWABLE ENERGY IN THE UNITED STATES
AND
SELECTED
COUNTRIES
8-11,
15-19,
25-26
(2005),
available at
http'//tonto.eia.doe.gov/FTPROOT/features/nonhydrorenewablespaper-final.pdf.
9.
Energy Policy Act of 2005, Pub. L. No. 109-58, 1303, 119 Stat. 594, see also
North Carolina Solar Center, Database of State Incentives for Renewables and Efficiency,
http://www.dsireusa.org/summarytables/financial.cfm?&CurrentPageld=7&EE= l&RE= 1
(last visited Jan. 12, 2006).
10.
On February 24, 2004, Secretary of the Interior Gale Norton testified before the
House Appropriations Committee on the major proportion of renewable energy projects on
federal lands:
Energy: Lands and waters managed by Interior produce about 30 percent of the
Nation's energy supply. Approximately one-third of the natural gas, coal, and oil,
one-half of geothermal energy, 17 percent of hydropower, and 20 percent of wind
power are produced in areas managed by Interior. We are committed to
implementing the President's National Energy Plan, a part of which focuses on a
long-term strategy for producing traditional and renewable sources of energy on
Federal lands while maintaining environmental protections and involving all
interested persons in open decision-making processes.
Fiscal2005 Appropriations:InteriorAnd Related Agencies: Hearings Before the Subcomm.
on Interior and Related Agencies of the H. Appropriations Comm., 108th Cong. (2004),
availableat 2004 WL 349649 (emphasis added) [hereinafter Hearings] (statement of Gale
A. Norton, Sec'y, Dep't of the Interior).
11.
Victoria Sutton & Nicole Tomich, Harnessing Wind Is Not (by Nature)
Environmentally Friendly, 22 PACE ENVTL. L. REV. 91, 95-97 (2005).
12.
R. DOOLING, AVIAN HEARING AND THE AVOIDANCE OF WIND TURBINES 5 (2002),
availableat http'//www.nrel.gov/docs/fy02osti/30844.pdf. Cf.U.S. Dep't of Energy, Decibel
Levels, http://www.newton.dep.anl.gov/askasci/phy99/phy99405.htm (last visited Sept. 18,
2006) (stating that an ordinary speaking voice is approximately sixty decibels.
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WIND AND WISDOM
2007]
deafening for humans is too low in frequency for birds to hear."
Moreover, birds have diminished visual acuity when compared to
humans and thus may not be able to see the spinning wind
turbine blades. 4 Consequently, birds flying at heights
comparable to the height of wind turbines are hacked by the15
blades and meet their death at the base of these wind turbines.
The extent of the carnage depends upon the time of the year, the
location of the turbines relative to the flight pathways of the
birds, and the arrangement and height of the wind turbines.16
III. THE DISPROPORTIONATE IMPACT ON BIRDS OF PREY
The impact that wind turbines can have on the avian
population should be a serious environmental consideration.
Altamont Pass, California, one of the original wind farms in the
U.S., has had a particularly destructive impact on many different
species of raptors, including the golden eagle. 7 Two
environmental groups in California sought to prevent an
Alameda County zoning board from issuing renewal permits for
approximately 1,400 wind turbines." The groups pointed to the
22,000 bird deaths as evidence that the wind turbines were a
"terrestrial Exxon Valdez" for birds. 9 Indeed, studies estimate
that hundreds of raptors died from turbines at the Altamont Pass
wind farm in 2001 alone.
A quiet countryside is twenty decibels or less, while a power lawnmower, up close, is at
about ninety decibels.)
13.
Loudness of sound is a function of both decibel level (intensity) and frequency
(pitch).
See
Kenneth
R.
Koehler,
Physics
of
Hearing,
http://www.rwc.uc.edu/koehler/biophys/9d.html (last visited Sept. 18, 2006). Turbine
sound is predominantly low frequency. Humans can hear lower frequencies than birds
and thus may be able to hear the turbines at greater distances. DOOLING, supra note 12,
at 4-5.
14.
This is known as the motion smear phenomenon. See KARIN C. SINCLAIR,
STATUS OF AVIAN RESEARCH AT THE NATIONAL RENEWABLE ENERGY LABORATORY 6 (2001),
available at http://www.nrel.gov/docs/fy01osti/30546.pdf.
15.
MORGAN WINN TINGLEY, EFFECTS OF OFFSHORE WIND FARMS ON BIRDS:
CUISINARTS OF THE SKY OR JUST TILTING AT WINDMILLS? 54 (2003) (unpublished B.A.
thesis, Harvard University) (on file with author).
16.
Id. at 54-56.
17.
Rone Tempest, Windmills Take Toll on Wildlife; Activists Target Site in the Bay
Area Where Blades Have Killed 22,000 Birds, L.A. TIMES, Dec. 8, 2003, at B1.
18. Id.
19.
Id.; see also Hot Air Over Bird Deaths to Stall Windmills? Activist Likens
Turbines
to
Terrestrial
Exxon
Valdez,
WORLDNETDAILY,
httpJ/www.worldnetdaily.connews/article.asp?ARTICLE-ID=36016
(last
visited
Sept. 18, 2006).
20.
BUREAU OF LAND MGMT., U.S. DEP'T OF THE INTERIOR, FINAL PROGRAMMATIC
ENVIRONMENTAL
IMPACT
STATEMENT
5-59,
tbl.
5.9.3-3
(2005),
available
httpJ/windeis.anl.gov/documents/fpeis/maintext/VollVollCh5.pdf
[hereinafter
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at
BUREAU
350
ENVIRONMENTAL & ENERGYLAW & POLICYJ.
[1:2
But, the widely varying numbers of avian fatalities found by
governmental studies combined with the conclusions that some
researchers have drawn from the fatalities are misleading and
cause distrust of the avian studies used to support wind energy
projects. One such detractor argues that "compared to bird
deaths resulting from other manmade structures, highway
traffic, and housecats, bird kills by wind plants are numerically
insignificant and are not expected to impact bird populations."2 1
The study further cautions that "of course, deaths of endangered
species are of greater concern, but again the only location with a
suggestion of this problem is Altamont, and even in that case,
experts disagree on the severity of the problem."22 But, such
statements
ignore
the fact that
wind farms have
disproportionately impacted raptors." Moreover, the effort to
distinguish Altamont Pass as a freak occurrence in terms of
avian impacts disregards comparable wind farms that have also
had comparably large numbers of raptor collisions.24 This
evidence suggests that wind farms do disproportionately impact
raptors.
Further inconsistencies arise when discussing populationlevel effects on raptors. Studies have concluded that there is an
average of 2.19 avian fatalities per wind turbine, per year." The
loss is stated in terms of the number of raptor or bird fatalities
per year, per turbine, or per square meter coverage of the sweep
of the blades (per 100,000 m 2 ). The Altamont Pass study is
perhaps the most dramatic, showing potentially 734 raptor
fatalities per year for the entire wind farm, in part because it had
more wind turbines than any other wind farm.26 Of ninety-five
OF LAND MGMT.] (estimating .007 to .24 raptor fatalities per turbine per year; Altamont
Pass had 5,400 turbines in 2001).
21.
ED DEMEO, ET AL., SOME COMMON MISCONCEPTIONS ABOUT WIND POWER 5-6
(2003), available at http://www.eere.energy.gov/windandhydro/windpoweringamerica/
pdfs/wpa/34600_misconceptions.pdf.
22.
Id.
23.
See TINGLEY, supra note 15, at 13-15 (arguing that studies comparing avian
deaths with other sources fail to take into account idiosyncratic variables, such as the
time it takes for some species to reproduce).
24.
Stewart Lowther, The European Perspective: Some Lessons from Case Studies,
in
NAT'L
AVIAN-WIND
POWER
PLANNING
MEETING
III
115-24,
available
at
http://www.nationalwind.org/publications/wildlife/avian98/
16-Lowther-EuropeanPerspective.pdf (last visited Jan. 31, 2007) (noting that there were
106 avian fatalities at Tarifa, Spain wind farm, of which thirty were Griffon Vultures, a
nationally protected species).
25.
WALLACE P. ERIKSON ET AL., AVIAN COLLISIONS WITH WIND TURBINES:
A SUMMARY OF EXISTING STUDIES AND COMPARISONS TO OTHER SOURCES OF AVIAN
COLLISION
MORTALITY
IN
THE
UNITED
STATES
2
(2001),
available at
httpJ/www.west-inc.com/reports/aviancollisions.pdf.
26.
CARL G. THELANDER & LOURDES RUGGE, AVIAN RISK BEHAVIOR AND FATALITIES
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WIND AND WISDOM
2007]
bird fatalities observed among its 685 monitored wind turbines,
fifty-one percent of the fatalities were raptors.2 7 In 1998, a study
concluded that the golden eagle population was declining in the
area as a direct result of the Altamont wind farm.2 8 Yet, in direct
contradiction to this study, the eleven-state Western State
Programmatic Environmental Impact Statement for wind power
in the region reports that "[t]o date, no studies have shown
population-level effects in raptor populations associated with
wind energy projects." 9 Since raptors reproduce at the rate of
less than two fledglings per year, per nest, it is difficult to
sustain the population; inordinate deaths of individual birds
cannot be so readily dismissed as having no effect on the larger
population."
While avian collisions on wind farms can have a serious
environmental impact, the issue for Native American tribal
nations is also one of cultural, religious, and historical
significance. While all energy resources have tradeoffs, including
renewable energy resources, the tribal governments will
ultimately consider the negative impacts on the environment in
the context of their religious, cultural, and traditional
frameworks when making their choices. Many studies ignore
these other nontraditional considerations. Indeed, one fact sheet
discusses the tradeoff in economic terms:
Environmental impacts are relative. All energy technologies
have some negative environmental impacts. Society makes
tradeoffs when making power plant choices. Wind plants
may result in some bird fatalities or other unwanted
impacts on wildlife and their habitats. Coal plants cause
premature human deaths from respiratory problems.
Maintaining open channels for free flow of oil causes
military deaths. Society needs to choose from these
alternatives, and it cannot assess a single energy
technology in isolation.
Other energy sources involve costs measured in human
deaths, while the costs of wind power are traditionally measured
only in bird deaths, trivialized in this unequal comparison of
AT
THE
ALTAMONT
WIND
RESOURCE
AREA
1
(2000),
available
at
http://www.nrel.gov/docs/fy0Oosti/27545.pdf.
27.
Id. at 18, tbl. 5.
28.
W.G. HUNT ET AL., A POPULATION STUDY OF GOLDEN EAGLES IN THE ALTAMONT
PASS WIND RESOURCE AREA: POPULATION TREND ANALYSIS 1994-1997 (1999), availableat
httpJ/www.nrel.gov/docs/fy99osti/26092.pdf.
29.
BUREAU OF LAND MGMT., supra note 20, at 5-62.
30.
See HUNT, supra note 28, at 17.
31.
DEMEO, supra note 21, at 6.
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losses.3 2 Such comparisons mislead by portraying a picture that
includes substantial benefits and minimal risks associated with
wind power. However, other economic analyses have considered
the costs of constructing wind turbines including steel production
and the loss of human lives in the mining and manufacturing
process that produces the wind turbine equipment, in addition to
human deaths and injuries resulting from falls and other
accidents during installation." In addition, at least one concern
that has been raised in the less-than-complete accounting of the
environmental and economic costs is the disposal cost of wind
turbines.3 4 The reliance of traditional analysis on cost-benefit
comparisons leaves no room for the consideration of the
unquantifiable spiritual and cultural context of the decisionmaking process.
IV. THE DISPROPORTIONATE IMPACT ON TRIBAL NATIONS:
GOOD OR BAD?
Some state and local governments are weighing these
environmental costs against the wind power benefits, and are
finding that the benefits do not outweigh the costs. For example,
Nantucket Sound is the development site for a twenty-eight
square mile offshore wind farm, located in a very popular Cape
Cod resort area. Thousands of residents have opposed the
project because of the destruction of their bay-view as well as the
impact on the birds and wildlife. 6 In Wisconsin, after the
development of two wind turbines, the Lincoln Zoning Committee
prevented the Madison Gas and Electric Company from building
any more wind turbines.37 In Michigan, a developer filed suit
against the Cheboygan County Planning Commission after being
denied a special use permit for the construction of wind
32.
Id. at 5-6.
33.
See, e.g., JOHN K SUTHERLAND, NUCLEAR POWER COMPARISONS AND
PERSPECTIVE
(2003),
available
at
http://www.energypulse.nett
centers/article/article-display.cfm?alid=498 (comparing nuclear power to alternatives
including wind power, and noting that accidental fatalities for wind turbine crews is
"projected to lie between" 85 and 342 deaths per terawatt-year).
34.
HENRIETTE HASSING & SOREN VARMING, LIFE CYCLE ASSESSMENT FOR WIND
TURBINES
2-3
(2001),
available
at
http://www.hornsrev.dk/
nyheder/nyh dec_0l/N590hha.pdf.
35.
DOUGLAS GIUFFRE ET AL., FREE BUT COSTLY: AN ECONOMIC ANALYSIS OF A WIND
FARM IN NANTUCKET SOUND (2004), available at http'/www.beaconhill.org/
BHIStudies/Windmills2004/CapeWindEconAnalysis31604.pdf.
36. Id. at 14.
37.
Keith Matheny, Wind Turbines a Turbulent Issue for Area, TRAVERSE CITY
RECORD
EAGLE,
Jan.
12,
2002,
available
at
http-//www.record-eagle.com/2003/j anl2wind.htm.
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WIND AND WISDOM
353
turbines. 8 In Charlevoix County, Michigan, a landowner filed a
federal action alleging a constitutional violation when the
township denied him permission to build wind turbine
generators.39 Also in Charlevoix County, the Eveline Township's
Master Development Plan specifically states that it
"[d]iscourage[s] wind power generating facilities and structures
as undesirable encroachments on the rural character of the
township."40
Other local governments and municipalities are seeking to
develop ordinances to accommodate wind turbines and the
residents' environmental concerns. For example, Otsego County,
Michigan has an ordinance which limits the area in which wind
turbines can be constructed (forest recreation, agriculture and
business districts) with a minimum of twenty acres for the
project, five acres for each wind turbine installed, setbacks of
one-and-a-half times the height of towers, and noise from
generators not to exceed sixty-five decibels."4
Wealthier communities are more likely to have their values
respected and have access to a wider range of energy resources
that are consistent with their values from which to choose. Tribal
nations, which include some of the poorest communities in
America," are often not connected to the national power grid43
and do not have sufficient financial resources to hire consultants
to examine alternative energy proposals." Consequently, they are
more likely to accept alternative energies that, at first blush,
appear to be less expensive and without risks.
As a result of poor economic conditions on reservation lands,
"a growing number of Indian tribes [have been forced] to
exchange their spiritual view of their once pristine environment
for a commercial one.' 5 Such competing interests require
38.
39.
40.
41.
Id.
Id.
Id.
Id.
See STELLA UGONWOLE, U.S. CENSUS BUREAU, 2000 SPECIAL REPORT 28, WE THE
42.
PEOPLE: AMERICAN INDIANS AND ALASKA NATIVES IN THE UNITED STATES 9-12 (2006),
http'//www.census.gov/population/www/socdemo/race/censr-28.pdf (finding that members
of Indian tribes were less likely to be engaged in permanent work, less likely to be in
management or a professional occupation, had lower incomes, and had higher incidences
of poverty than the national average).
43.
ENERGY INFO. ADMIN., U.S. DEP'T OF ENERGY, ENERGY CONSUMPTION AND
RENEWABLE ENERGY DEVELOPMENT POTENTIAL ON INDIAN LANDS 3-4 (2000) (stating that
one in seven households on tribal lands did not have access to electricity in 1990),
available at http://www.eia.doe.gov/cneaf/solar.renewables/ilands/ilands.pdf.
44. Id.; see also UGONWOLE, supra note 42.
45.
Roger Romulus Martella, Jr., Note, "Not In My State's Indian Reservation"
A Legislative Fix to Close an Environmental Loophole, 47 VAND. L. REV. 1863-65 (1994).
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vigilance over the wind power feasibility process to ensure that
native tribal cultures are valued, respected, and recognized in
any alternative energy development program, including wind
power. A more insidious form of assimilation of values occurs in a
process referred to in Indian country as "value colonialism"
where "the systematic displacement of traditional values by those
of the majority society" occurs.46 Tribes, in response to "harsh
realities," depart from traditional norms to engage in
nontraditional economic development.47
For state and local governments as well as Native American
tribal governments, wind power is promoted as being the most
environmentally-friendly alternative energy form, yet its
environmental and avian impacts are substantial." The risk of
these impacts tends to be considered negligible because of the
perceived potential benefits from the technology. A risk
perception study found that people perceive risk in terms of their
comfort with the technology.49 That is, if a person feels "bad"
about a technology, she will perceive greater risks and lesser
benefits. Conversely, if a person "feels good" about a technology,
she will perceive greater benefits and fewer risks.5" The fact that
Native Americans have a special cultural and religious
relationship with the Earth can lead to the erroneous conclusion
that wind power either benefits all tribes, or the particular tribal
nation where wind power is being developed. A number of
scholarly observers, including Professor John LaVelle, have
referred to this threat of value imposition to tribal nations by
describing "[t]he reckless imposition of environmentalist values
in Indian country as a type of environmental racism."5 '
V. TRUE COLLABORATION: WIND POWER AS
A MAJOR FORCE ON TRIBAL NATIONS' LANDS
Secretary of the Interior Norton has made clear that
renewable energies development must be a collaborative process.
Testifying before the House Appropriations Committee on the
46.
Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination:
The Role of Ethics, Economics, and TraditionalEcological Knowledge, 21 VT. L. REV. 225,
309 (1996).
47.
See id.
48.
See supra notes 25-28 and accompanying text.
49.
Melissa L. Finucane et al., The Affect Heuristic in Judgments of Risks and
Benefits, 13 J. BEHAV. DECISION MAKING 1-17 (2000).
50.
Id. at 3-4, 9.
51.
John P. Lavelle, Rescuing Paha Sapa: Achieving Environmental Justice by
Restoring the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux
Nation, 5 GREAT PLAINS NAT. RESOURCES J. 40, 73 (2001).
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WIND AND WISDOM
major proportion of renewable energy projects on federal lands,
she said:
We are committed to implementing the President's
National Energy Plan, a part of which focuses on a longterm strategy for producing traditional and renewable
sources of energy on Federal lands while maintaining
environmental protections and involving all interested
persons in decision-making processes. 12
The Tribal Energy Program is specifically designed to
promote renewable energy on tribal lands, including wind, solar,
photovoltaic, geothermal energies, and hydroelectric power. 53 The
incorporation of wind power projects utilizing Department of
Energy ("DOE") funding began in 1994 for Native American
tribal energy projects. 4 These projects, however, did not become a
priority until 2000-01, when wind power was included as a
prominent part of President George W. Bush's Energy Policy and
the feasibility studies for wind power were funded.55 In the
following years, the energy policy of the Bush Administration
encouraged and funded the growth of wind power projects. 6 As a
result, during the 2002-06 period, seventeen Native American
tribal nations were awarded wind power development and
feasibility projects. 57 Many other projects incorporate wind power
as one of several renewable energy projects." The establishment
of the Native American Wind Interest Group ("NAWIG") provides
training, education and an equipment loan program for
feasibility studies, while currently working with twenty tribes,
marking another effort by the DOE to increase tribal interest for
52.
See Hearings,supra note 10.
53.
OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, U.S. DEP'T OF
ENERGY,
TRIBAL
ENERGY
PROGRAM,
available
at
http'//www.nrel.gov/docs/fy04osti/35509.pdf [hereinafter TRIBAL ENERGY PROGRAM].
54.
See id. The Energy Policy Act of 1992 authorized funding for tribal energy
projects. Energy Policy Act of 1992, Pub. L. No. 102-486, §§ 2601-2604, 2606 106 Stat.
2776, 3113-3116, 3118 (codified as amended at 25 U.S.C.A. §§ 3501-3504, 3506 (2005)).
55.
See ENERGY INFO. ADMIN., U.S. DEP'T OF ENERGY, ENERGY CONSUMPTION AND
RENEWABLE ENERGY DEVELOPMENT POTENTIAL ON INDIAN LANDS 41-44 (2000), available
at
http://www.eia.doe.gov/cneaf/solar.renewables/ilands/ilands.pdf
[hereinafter
EIA,
DEVELOPMENT POTENTIAL ON INDIAN LANDS].
56.
See Energy Policy Act of 2005, Pub. L. No. 109-58 (2005) (codified as amended in
scattered sections of 26 U.S.C.); see also Fiscal Year 2005 Budget: Hearing Before the S.
Com. On Indian Affairs, 108th Cong. 108-110, 120-124 (2004) [hereinafter Garman
Testimony] (statements of David Garman, Asst. Sec'y for Energy Efficiency & Renewable
Energy, U.S. Dep't of Energy) (discussion of budget increases and program priorities for
Tribal Energy Program).
57.
OFFICE OF ENERGY EFFICIENCY AND RENEWABLE ENERGY, U.S. DEP'T OF
ENERGY,
TRIBAL
ENERGY
PROGRAM,
available at http'//www.eere.energy.gov/
tribalenergy/projects-technology.html.
58.
See Garman Testimony, supra note 56.
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this technology.59
Sixty-one reservations or areas controlled by tribes, which
include fifty percent of the Indian population who live on Indian
lands, have been designated as areas for potential wind
development based upon the wind quality and quantity available
in these locations.60 The cost of wind generated electricity has
been estimated at less than two cents per kilowatt hour ("kWh")
above regional wholesale prices.6' Incentives at the state or
federal level for these projects could make the projects even more
cost-effective according to the DOE. 2 These wind projects must
ultimately be economically sustainable or they will end as
remnants of failed experiments on Indian lands. This
sustainability requirement is particularly important because the
attractiveness of wind power is significant on Indian lands; fortyfive reservations have wind resources ranked as Class 5 or 6
winds (the highest ratings); forty-eight reservations have Class 4
winds; 205 have Class 3 or lower and are therefore not
considered suitable for wind development. 3 All are in the
western United States except for the Eastern Cherokee
Reservation in North Carolina.64
The development of wind-power projects and the related
feasibility studies must include the cultural and environmental
considerations of the tribe in addition to regulatory and statutory
requirements. Environmental impacts, including impacts on
listed endangered or threatened species, as well as cultural and
archaeological sites, must be considered. The DOE, through the
National Renewable Energy Laboratory ("NREL"), based in
Golden, Colorado, includes tribes in its process for wind
development projects in accordance with the 2000 Executive
Order on activities that have "substantial direct effects" on tribal
people and lands.6"
Under the National Environmental Policy Act ("NEPA"), 66
programmatic environmental impact statements ("PEIS") may be
prepared for a region where the cumulative impacts reflect the
true impact rather than a project by project analysis, which may
59.
See TECHNICAL PLAN, supra note 3, at 23.
60.
ENERGY INFO. ADMIN., DEVELOPMENT POTENTIAL ON INDIAN LANDS 28, tbl. 6
(2000), available at httpJ/www.eia.doe.gov/cneaf/solar.renewables/ilands/ilands.pdf.
Id. at ix.
61.
Id. at 28, tbl. 6.
62.
Id.
63.
64. See id. at fig. 13.
65.
Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 6, 2000).
Pub. L. No. 91-190, 83 Stat. 852 (1970) (codified at 42 U.S.C. §§ 4331-4347).
66.
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WIND AND WISDOM
belie the cumulative effect.6 7 In September 2004, the Bureau of
Land Management ("BLM") completed a draft PEIS for the
eleven-state study area for a Wind Energy Development
Program. 8 The BLM reported that, of the 303 tribal governments
contacted, only three tribes responded with an interest in being
consulted.69 Tribes typically do not have a staff of experts who
might have the resources to evaluate the impacts of these
projects. On certain issues, such as the potential impacts on
eagles and other raptors, the impact of wind power is not
commonly known, and tribes therefore cannot make assessments
without some disclosure of the known impacts during the
development of an environmental impact statement (EIS).
Despite these efforts at promoting wind energy for tribes,
progress has been slow. Published in 2003, the DOE's multi-year
plan for the technological program in wind energy development
finds that "[there are no large-scale wind developments on
Native American Lands, despite the wide availability of excellent
wind resources on those lands. A milestone was achieved in early
2003, however, when the first Native American 750 kW wind
turbine was installed on the Rosebud Sioux Indian Reservation
in South Dakota."7 °
While mitigating measures can be taken to make wind farms
safer with respect to avian impacts, little of this information has
been shared with the tribes. For example, stripes on the blades,
and in particular, one black blade among the three blades can
make a significant difference in visibility for raptors, potentially
helping them to avoid a collision. 71 Further, arrangement of wind
turbines can be done in such a way as to avoid collisions. For
instance, cluster arrangements may protect the migratory raptor
better than a widely dispersed design. 72 Tribal officials were
67.
42 U.S.C.A. § 4332 (2005) (requiring environmental impact statements (EIS)).
See also Friends of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 2003)
(finding PEIS acceptable under "rule of reason" standard of review).
68.
The BLM targeted tribes in eleven states-Arizona, California, Colorado, Idaho,
Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming-to offer
consultation services. See BUREAU OF LAND MANAGEMENT, U.S. DEP'T. OF THE INTERIOR,
DRAFT PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT 7-2, tbl. 7.2-1 (2004),
available at http://windeis.anl.gov/documents/dpeistmaintext/section7.pdf.
69.
These tribes are: Lovelock Pauite, Taos Pueblo, and Pawnee Nation of
Oklahoma. Id.
70.
See TECHNICAL PLAN, supra note 3, at 45.
71.
WILLIAM HODOS, NAT'L RENEWABLE ENERGY LAB., MINIMIZATION OF MOTION
SMEAR: REDUCING AVIAN COLLISIONS WITH WIND TURBINES 24, 32-33 (2003), available at
http J/www.nrel.gov/docs/fy03osti/33249.pdf.
72.
CALIFORNIA ENERGY COMM'N, A ROADMAP FOR PIER RESEARCH ON AVIAN
COLLISIONS WITH WIND TURBINES IN CALIFORNIA
18-19 (2002), available at
http//www.energy.ca.gov/reports/2002-12-24_500-02-070F.PDF.
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clearly unaware of mitigating factors that should have been part
of the cultural and environmental assessment: "[u]sually the
wind farms are very tightly packed in a crowded area because of
land ownership. The tribes have an abundance of windy lands
available, which gives us an opportunity to maybe scatter them
more in different parts of the reservation."" This tribal official's
statement does not reflect a plan to address mitigating factors,
but appears to be driven solely by the availability of land and the
assumed willingness of the community to accept it.
The protection of tribal nations cannot depend only on selfgovernment and self-determination because the federal
government plays such a large role in altering the economy,
environment, culture, and even the spirituality of tribal nations.
Environmental justice requires that the burden of environmental
impacts should not fall disproportionately on minorities and the
communities most unable to protect themselves from these
actions.74 Nor should these tribal nations be made a laboratory
for experiments not found suitable for implementation by
wealthier communities. A truly collaborative approach can move
this process forward in a positive way, while fully considering all
aspects of wind projects for tribal nations in the context of what
remains a somewhat experimental technology. The following
examination of the legal tools available to best address the needs
of a collaborative process is helpful in light of Anglo-American
law's failure to meet the needs of the process for tribal decisionmaking.
VI. CAN SPIRITUAL, CULTURAL AND ENVIRONMENTAL CONCERNS
BE VALUED WITHIN ANGLO-AMERICAN LEGAL CONSTRAINTS?
The issues of concern for Native American tribal nations
involve spiritual and cultural aspects that are intertwined with
the environment, and are conceptually inseparable.7 5 The bald
eagle and golden eagle are good examples of this relationship,
and are important to this analysis because they highlight the
differences between Anglo-American law and the concerns of
tribal nations. Legal constraints that protect the eagle for
environmental reasons in Anglo-American law would serve the
73.
Tara Tidwell, First Rosebud Wind Turbine Generates Support: An Interview
with Intertribal COUP Secretary Robert Gough, CULTURAL SURVIVAL Q., Sept. 15, 2003,
at 11, available at httpJ/209.200.101.189/publications/csqcsq-article.cfm?id=1697.
74.
See Envtl. Prot. Agency, supra note 4.
75.
See, e.g., Leanne Simpson, Listening to Our Ancestors: Rebuilding Aboriginal
Nations in the Face of Environmental Destruction (2003), httpJ/www.snowchange.org/
snowchange/index2.php?option=com content&dopdf=l&id=29 (discussing the Aboriginal
view of cyclical time and relationships).
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359
same goal for tribal nations, but for cultural and spiritual
purposes. The reasons for the eagle's protection are not
important as long as the laws serve both Anglo and Native
American goals. But what becomes of this balance when the legal
constraint to protect the eagle for the sake of environmental
protection as an endangered species disappears? When the eagle
is no longer listed as an endangered species meriting protection
through Anglo-American law, what law or process can protect the
interests of the tribal nations in the continued protection of the
eagle? Wind power development raises this important set of
issues.
A.
The Significance of Place: Looking at Wind and Birds
To truly understand the differences between the tribal and
Anglo-American purposes for protecting the eagle, the
relationship Native Americans have with the environment merits
further discussion. The relationship Native American people
have with the environment is one of interrelatedness with
animals, plants, seasons, the sun, and the moon; it is a
relationship that recognizes the holistic and cyclical nature of the
relationship.7 6 Accordingly "place" is an important and integral
part of life and carries historical, cultural, and spiritual
significance. But "place" is not limited by land and its
attachments, as it might be considered in Anglo-American law,
but encompasses a holistic sense of "place".77 This concept is in
contrast to the Anglo-American concept of the environment as
something to conquer and own, where humankind is more of an
aggressive master than a co-equal part of nature." The AngloAmerican system has been seen to view nature as "a lifeless
commodity, and a nonliving collection of natural resources to be
exploited."79
76.
Id.
77.
See id. (stating that "'space' or 'place of creation'... [is] the earth lodge ... an
interrelated space where Aboriginal people have direct and extremely visceral
relationships with the essential forces in nature") (quoting Sakej Youngblood Henderson,
Ayukpachi: Empowering Aboriginal Thought, in RECLAIMING INDIGENOUS VOICE AND
VISION (M. Battiste, ed., UBC Press 2000)).
See, e.g., Richard Field, Management and Motivation, available at
78.
(last visited
http://www.bus.ualberta.ca/rfield/Management%20and%2OMotivation.htm
Sept. 26, 2006) ("the dominant culture [in the United States and Canada] has seen the
natural environment as something to conquer and exploit.").
79.
CHRISTOPHER VECSEY ET. AL., AMERICAN INDIAN ENVIRONMENTS: ECOLOGICAL
ISSUES IN NATIVE AMERICAN HISTORY 21 (Christopher Vecsey & Robert Venables eds.,
Syracuse Univ. Press 1980). For an example of Anglo-American exploitation of natural
resources, see Robert N. Young, Importance of Biodiversity to the Modern Pharmaceutical
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The bald eagle has a special religious and cultural
significance for many tribes. Eagle feathers are universally
recognized among Native Americans as an award of honor
reserved for solemn and significant events and people." The
Hopi, Navajo, and Cheyenne Nations engage in ceremonial hunts
for eagles as part of their cultural and religious practice, and
treaty rights provide for a narrow exception to Anglo-American
laws which otherwise forbid destruction of eagles for some of
these practices. 8 ' Anglo-American laws also grant an additional
regulatory exception for the possession of eagle feathers and
parts to Native Americans." Judicial review of this exception has
resulted in the affirmation of the legality of the exception
because of the special government-to-government relationship
between Native American tribes and the United States
government.
Traditional stories and oral histories about the wind and
birds are found among many Native American tribes,
particularly those in areas where significant winds have shaped
the relationship between Native American peoples and their
environment.
These stories
evidence
a complexity of
relationships, which typify the interrelatedness of humankind
with all components of the environment.
The Abenaki emphasize the importance of wind through the
story of Wuchosen and Gluscabi.8 4 Wuchowsen, the Wind Eagle,
lived on a mountain and made the wind blow by flapping his
wings.8
The constant winds made a young boy, Gluscabi,
unhappy because the winds made it impossible for him to use his
boat to hunt ducks. Gluscabi traveled to the mountain where
Wuchowsen lived and convinced him to flap his wings on a higher
Industry, 71 PURE APPLIED CHEMISTRY 1655, 1655-61 (1999), available at
http://www.iupac.org/publications/pac1999/71_09_pdf/ 7109young_1655.pdf.
80.
Brett Anderson, Recognizing Substance: Adoptees and Affiliates of Native
American Tribes Claiming Free Exercise Rights, 7 WASH. & LEE RACE & ETHNIC
ANCESTRY L.J. 61, 70 (2001); see also Brent Gunson, Cultural Tag of Wars: An Analysis of
the Legal Issues Involving the NPS Proposed Rule to Allow Taking of Golden Eagles at
Wupatki National Monument for Religious Purposes, 22 J. LAND RESOURCES ENVTL. L.
399 (2002).
81.
See Anderson, supra note 80; see also Gunson, supra note 80.
82.
See, e.g., 50 C.F.R. § 22.22 (1984); see also 16 U.S.C.A. § 668a (2006).
83.
See United States v. Abeyta, 632 F. Supp. 1301, 1307-08 (D.N.M. 1986) (memo.
op.) (upholding taking of eagle feather for religious ceremonial use on aboriginal lands).
But see United States v. Dion, 476 U.S. 734, 744-45 (1986) (holding that non-Indians
cannot claim religious ceremonial use of eagle feathers).
84.
First People, Native American Legends: Abenaki, http'J/www.firstpeople.us/
FP-Html-egends/GluscabiandtheWindEagle-Abenaki.html (last visited Aug. 22, 2006).
85.
FLORENCE V.
FARMER, NATURE MYTHS OF MANY LANDS
13-15
(Kessinger Publ'g 2003) (1910).
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mountain. Gluscabi volunteered to carry Wuchowsen to the other
mountain by bundling his wings. On the way, however, Gluscabi
dropped Wuchowsen into a crevice and the wind ceased to blow.
However, without the wind, the air was hot and the water was
dirty. Gluscabi realized that the wind was important and moved
Wuchowsen back to his place. Wuchowsen agreed to only make
the wind blow sometimes.
The Blackfeet, a tribal Nation on the border area of Montana
and Canada, adjacent to the Glacier National Park, have an oral
tradition about Kut-oy-is, who went to the mountains where the
spirits lived to find the Wind Sucking Monster.86 This monster
had sucked animals and people into his stomach with the wind.
The use of laughter freed the animals and people from the
monster. Another oral story explains how Windmaker Lake in
the Park came by its name. A Blackfoot elder followed the wind
to find it was created by a great Elk, who created the winds when
he shook the water from his head as he emerged from the Lake."
The Aleuts have a story about the genesis of the winds.8 A
childless couple fashioned a wooden doll at the behest of the
Moon Spirit. This doll came to life and traveled to the four
corners of the world. At each corner, the doll found a bit of skin
covering a hole. The doll pulled back the skin and let in the wind
and the animals. Each time, the doll told the winds when to blow.
This story recounts the creation of the winds.89
A Tillamook oral story describes the origin of the
thunderbird, a bird which flies where the winds are so harsh that
the man in the story must close his eyes to avoid being hurt by
the winds.9 ° After enduring the wind, the man is shown whales.
This story is considered the origin of Tillamook whale hunting.91
These stories underscore the importance of wind and birds to
these tribes. Many other tribal nations also have oral traditions
of the role of wind and birds in their origins and their survival
stories. Because of the potential impacts on the relationships
among the wind, birds, and humans, consideration of wind power
development is of significant interest to elders and religious
86.
DAVID
ADAMS
LEEMING,
THE
WORLD
OF
MYTH
302-303
(Oxford Univ. Press 1990).
87.
Glacier Plays Key Role in Blackfeet Myths, Culture, GREAT FALLS TRIB.,
May 16, 2004, at 15EG.
88.
First People, Native
American Legends: Aleut, httpJ/firstpeople.us/
FP-Html-Legends/TheOriginoftheWinds-Aleuts.html (last visited Aug. 22, 2006).
89.
Id.
90.
Franz Boas, Traditions of the Tillamook Indians, 11 J. AM. FOLKLORE 23, 24
(1898)
91.
Id.
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leaders of Native American tribal nations, and cannot be
undervalued in the decision-making process.
B. Utilizing the Statutory and Executive Order Tools for
Addressing the Complexity of Environmental,
Spiritualand CulturalIssues
Within Anglo-American law, two legal mechanisms can be
used to promote the common goals of environmentalists and
Native Americans. Statutory laws protecting the environment
may consequently protect spiritual and cultural concerns. But
where statutes fail, executive orders for tribal collaboration,
environmental justice, and the legal doctrine of the federal trust
responsibility to tribes may ensure that spiritual and cultural
interests important to self-government and self-determination
are not ignored.
NEPA is intended to ensure that federal agencies consider
the environmental impacts of actions taken. It provides visibility
and an opportunity for the public to comment on certain actions
and their impacts. s2 However, NEPA cannot stop a project, even if
the impacts to the environment are severe, because the statute
requires only that an agency consider the impacts. 3 On the other
hand, statutes such as the Endangered Species Act (ESA) can
stop a federal project if it is impossible to effectively mitigate the
effects on an endangered species or a species on the threatened
list.94 The species, as well as the habitat of the species, are
protected by ESA and the habitat can go well beyond the
boundaries of the federal project area."
President Clinton proposed removing the bald eagle from the
ESA threatened list in 1999, four years after moves were taken
to remove it from the endangered classification list.96 The
implications of the bald eagle's removal from the threatened list
92.
National Environmental Policy Act §§ 101-102 (codified as amended at
42 U.S.C. §§ 4331-4332 (2006)).
93.
Id.; see also Strycker's Bay Neighborhood Council v. Karlen, 444 U.S. 223 (1980)
(per curiam).
94.
Endangered Species Act of 1973, Pub. L. No. 93-205, §§ 3, 4, 7 & 9,
87 Stat. 884, 885-87 (codified as amended at 16 U.S.C.A. §§ 1532, 1533, 1536 & 1538
(2006)).
95.
Id. § 1531-1538.
96.
Todd Ackerman, Recovered Bald Eagle Flies Off Endangered List,
HOUS. CHRON., July 3, 1999, at Al. The bald eagle was reclassified as "threatened" in
1995. 60 Fed. Reg. 36,000 (July 12, 1995) (effective Aug. 11, 1995). Final delisting of the
bald eagle is pending. See 71 Fed. Reg. 8238 (Feb. 16, 2006) (reopening comment on
proposed delisting).
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meant that impacts to the species, including destruction of its
habitat, would no longer prevent a project from going forward.
Although the Golden Eagle and Bald Eagle Protection Act
provides penalties for possession of the bird, or taking the bird or
bird parts, it does not include the protection of its habitat.97 The
Act addresses three activities involving the birds: (1) removal
from the environment, (2) requirement of a permit for transfer
and possession; and (3) requirement of a permit for transfer in
interstate commerce. 8 With the recent announcement that the
delegates to the Convention on International Trade on
Endangered Species ("CITES") Convention approved the United
States' move to delist the bald eagle,99 ESA can no longer be
relied upon to prevent a wind project from going forward if the
species or its habitat is jeopardized by a project.
The Migratory Bird Treaty Act addresses the destruction of
birds, but only Executive Order 13,175 requires' agencies to
address threats to the habitat and survival of migratory birds. °°
Indian Nations are asked to comment on the archaeological and
cultural sites that might be affected by a wind farm, as well as to
provide input on environmental impact statements in accordance
with Executive Order 13,175. The eagle is an important cultural
part of the tribal environment, yet the statutes do not give the
kind of consideration necessary to protect it. For example, the
National Historic Preservation Act (NHPA) only protects land
and its attachments. 01 1 Since the eagle is neither land nor
physically attached to the land, it is not protected as cultural
property in Anglo-American law.' 0' Anglo-American property law
separates that which is physically attached to the land from that
which merely occupies the land. Therefore, animals are not
cultural property and do not fall under the protection of this
statute. Similarly, environmental law does not provide the
authority to preserve or protect a part of the environment which
97.
Bald Eagle Protection Act, ch. 278, 54 Stat. 250 (1940) (codified as amended at
16 U.S.C. §§ 668a-d (2004)); Bald and Golden Eagle Protection Act, ch. 278, § 1
(codified as amended at 16 U.S.C. § 668 (2004)); Golden Eagle Protection Act,
Pub. L. No. 87-884, 76 Stat. 1246 (1962).
98.
Bald and Golden Eagle Protection Act § 1.
99.
Press Release, U.S. Dep't of Interior, United States Pleased With Outcome of
CITES Conference in Bangkok, Assistant Secretary Craig Manson Declares
(Oct. 14, 2004), available at httpl/www.doi.gov/news/041014c.
100.
Migratory Bird Treaty Act, ch. 128, 40 Stat. 755 (1918) (codified as amended at
16 U.S.C.A. §§ 703-712 (West 2006)); Exec. Order No. 13,175, 65 Fed. Reg. 67,249
(Nov. 6, 2000).
101.
Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified as amended in scattered
sections of 16 USC).
102.
National
Historic
Preservation
Act (NHIPA)
§
101
(codified
as
16 U.S.C.A. §§ 470a, 470w (2006)).
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has been de-listed as a threatened or endangered species, other
than to ensure that its impacts are considered during the course
of planning a major federal action."°3
Section 101 of the NHPA outlines the tribal consultation
process that the federal government is required to follow when it
embarks on a project that would substantially affect a tribe."
The process obligates the federal government to consider
traditional cultural properties as identified by the tribe or
0 It is evident that the
through the process of a project study."
government is not doing enough to identify these cultural
properties, as evidenced by the Confederated Tribes and Bands of
the Yakima Nation's response to the Wild Horse Wind Power
Project.'
The tribes wanted more work to be done on the
identification of cultural properties." 7 Interestingly, the tribes
did not raise any concerns about the environmental assessment
or the impact of the project on raptors, which neither statute
protects, but would be included in a consultative process under
Executive Order 13,175.
Additionally, Executive Order 12,898, addressing federal
actions and environmental justice among minority populations,
prohibits federal projects from disproportionately impacting
minority populations with environmental burdens."8 All Native
American programs fall within these protections. °9 With regard
to wind power projects, which have significant impacts on tribal
nations in the sense of spiritual, cultural, and environmental
issues, the Order similarly requires consideration of the project
impact on tribes."0
103.
See Endangered Species Act of 1973, Pub. L. No. 93-205, 87 Stat. 884.
104.
NHPA § 101.
105.
Id.
106.
Letter from Jerry Meninick, Chairman of the Confederated Tribes & Bands of
the Yakima Nation, to Chris Taylor, Project Dev. Manager (Apr. 6, 2004)
(on file with author).
107.
Id.
108.
Exec. Order No, 12,898, 59 Fed. Reg. 7629 (Feb. 11, 1994) ("[Elach Federal
agency shall make achieving environmental justice part of its mission by identifying and
addressing, as appropriate, disproportionately high and adverse human health or
environmental effects of its programs, policies, and activities on minority populations and
low-income populations in the United States .... ").
109.
Id. at 7632 ("Each Federal agency responsibility set forth under this order shall
apply equally to Native American programs. In addition, the Department of the Interior,
in coordination with the Working Group, and, after consultation with tribal leaders, shall
coordinate steps to be taken pursuant to this order that address Federally-recognized
Indian Tribes.").
110.
Id.
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C. Trust Responsibility
Tribes were never entrusted to manage their own resources
when the pressure of progress demanded their appropriation.
The legal rule for the recognition of a trust relationship with
federal Indian tribes is found in one of the three foundation cases
of Indian law. In Cherokee Nation v. Georgia, Justice Marshall
wrote that "[Indian nations] occupy a territory to which we assert
a title independent of their will ....Meanwhile, they are in a
state of pupilage. Their relation to the United States resembles
that of a ward to his guardian.""' In Cherokee Nation v.
Hitchcock, a Senate Committee was quoted as finding that,
"[wihile we have recognized these tribes as dependent nations,
the government has likewise recognized its guardianship over
the Indians and its obligations to protect them in their property
and personal rights.""2
The federal government's trust responsibility to tribes is
important in the protection of eagles, not only on Indian lands,
but also on surrounding lands which may form part of the eagles'
habitat. The government's responsibility includes preserving
tribal cultures in order to preserve the self-government and selfdetermination of each tribe. The de-listing of the bald eagle
would result in the loss of the statutory protection of its habitat,
and the inability of tribes to ensure its protection through law."3
In the case of other natural resources for energy use on
Indian lands, the Bureau of Indian Affairs ("BIA"), through the
BLM, has leased mineral and natural resource rights to energy
companies, including coal, oil, gas, uranium, and even
geothermal resources."' The BIA is required to manage these
resources as trustee for the lands and to ensure that the proceeds
from these leases go to benefit the individuals and tribes who
own them."' In 1996 a group of Native Americans filed a class
action lawsuit against the BIA, alleging mismanagement of these
lease proceeds for more than a century." 6 The suit alleged that
111.
Cherokee Nation v. Georgia, 30 U.S. 1, 33 (1831).
112.
Cherokee Nation v. Hitchcock, 187 U.S. 294, 302 (1902) (quoting Senate
Committee on Five Civilized Tribes of Indians, S. Rep. No. 53-377 (1894)).
113.
See supra note 103.
114.
See Indian Mineral Leasing Act of 1938, 52 Stat. 347 (codified as amended at
25 U.S.C.A. § 396 (West 2006)).
115.
Id.
116.
See Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998) (mem. opinion). This case
has a long history, with close to 100 related citations, mostly related to procedural
challenges filed by the U.S. See, e.g., 407 F. Supp. 2d 140 (D.D.C. 2005), 391 F.3d 251
(D.C. Cir. 2004). However, the plaintiffs have been successful in defeating summary
judgment and overcoming the government's sovereign immunity defense. 30 F. Supp. 2d
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billions of dollars were unaccounted for in the federal trust funds
for Native Americans in the Department of the Interior.11 7 Aside
from the question of the integrity of the trustee relationship, the
potential unmarketability of wind power without subsidies
should raise serious questions about the value of wind
resources-if these resources were truly valuable and therefore
marketable, the Bureau of Land Management would have
already leased them to energy companies for development rather
than leaving their use to the discretion of tribes.
VII. SPIRITUALITY AND CULTURAL CONCERNS
ARE NOT TO BE OVERCOME, BUT EMBRACED
IN A COLLABORATIVE EFFORT: CITING FAILURE?
In explaining the cyclical universe and the eternal and
perpetual existence of nature, Lame Deer said that "[tihe nation
was only a part of the universe, in itself circular and made of the
earth, which is round, of the sun, which is round, of the stars,
which are round. The moon, the horizon, the rainbow-circles
within circles, with no beginning and no end," testifying to the
eternal and perpetual existence of nature. 118
Often quoted wisdom from Black Elk, printed at the head of
this article, also describes the cyclical and circular rhythm of
nature. How is Black Elk's wisdom not in balance with capturing
the great and circular power of the wind? To the Native
American, the maintenance of these circles clearly sustains the
movement of nature's power. To interrupt these cycles or break
the circles would interfere with nature's power. This interference
must naturally have its consequence, and listening to and
following the cultural, spiritual, and environmental direction of
the tribe must be made a part of wind power projects. Decision
makers should give serious thought to tribal cultural
considerations for the protection of birds in wind projects, as well
as to creating a process that allows tribal voices to be heard and
given the value and respect that is the essence of a true
at 33-34; see also Billee Elliot McAuliffe, ForcingAction: Seeking to 'Clean Up" the Indian
Trust Fund: Cobell v. Babbitt, 30 F. Supp. 2d 24 (D.D.C. 1998), 25 SO. ILL. UNIV. L.J. 647
(2001). The litigation prompted the Indian Trust Reform Act of 2005 to settle the claims.
S. 1439, 109th Congress, 1st session (July 20, 2005); see also H.R. 4332, 109th Cong.
(Nov. 1, 2005).
117.
Cobell, 30 F. Supp. 2d at 27-28.
118.
John (Fire) Lame Deer was a full-blooded Sioux and Lakota holy man. See
Robyn
(Douglas)
Peterson,
Lame
Deer,
Seeker
of
Visions,
http://www.wmich.edu/dialogues/texts/lamedeer.html (last visited Apr. 13, 2006). See also
JOHN (FIRE) LAME DEER & RIcHARD ERDoES, LAME DEER, SEEKER OF VISIONS 100
(Pocket Books 1976) (1972).
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collaborative process.
The Department of Energy's Guide ("Guide") to Tribal
Energy Development states:
Cultural issues must be considered when choosing where
the equipment will go in siting the project. The ground will
be disturbed on the surface and perhaps deeper through
construction, access roads, pipelines and transmission
towers. Making sure there are not archeological, spiritual,
or other cultural impacts is obviously important.'
9
The Guide suggests that it is important to have no spiritual
or cultural impacts. However, the Guide also suggests that
education will cure spiritual issues in the way of the project site,
stating "Your tribe may have special beliefs or sensitivities that
impact the decisions, or call for extra discussions or even
education. For example, some people believe that wind turbines
slice through the air in a harmful way."'
The suggestion that cultural beliefs must be changed
through "education" does not value or respect the concerns of the
tribe. Education cannot result in a meaningful process of
collaboration with the tribe, without recognizing the value of the
tribe's perspective. Moreover, the Guide suggestion that tribes
need education suggests merely a one-sided exchange. Would
"extra discussions" be meaningful if they ended development of
the project? The Guide does not present this as an option.
The DOE gave only cursory consideration to the potential
environmental impacts in its feasibility study of the Flathead
Nation wind project near Ronan, Montana, and described those
impacts
with
minimizing
language:
"[t]he
potential
environmental impacts from the wind assessment will focus on
avian issues. The avian impact has been the most
sensationalized, although now known to be minimal." 2 '
The statement that avian impact concerns have been
"sensationalized, although now known to be minimal,"'2 2
underscores the devaluation of tribal concerns for this impact.
Additionally, the suggestion that a further study will be
conducted, despite the seemingly preordained conclusion that the
119.
U.S. DEP'T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE
ENERGY, A GUIDE TO TRIBAL ENERGY DEVELOPMENT: THE IMPACTS OF AN ENERGY
PROJECT
(2004),
available
guide/imp acts-energy-proj .html.
120.
Id.
121.
U.S. DEP'T OF ENERGY,
ENERGY,
FLATHEAD
NATION:
at
httpJ/www.eere.energy.gov/tribalenergy/
OFFICE OF ENERGY EFFICIENCY AND RENEWABLE
PROJECT
SUMMARY
(2004),
available
at
httpJ/www.eere.energy.gov/tribalenergy/projects/fyO4_flatheadnation.html.
122. See id.
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"avian impact [is] ...known to be minimal,"'23 casts doubt on the
reliability of such a study.
Identical language appears in the environmental impacts
summary for the Three Affiliated Tribes of the Mandan Hidatsa
and Arikara Nation in reference to avian impacts. 124 Again, the
DOE used the word "sensationalized" to describe the concern for
avian impacts.'25
The DOE's attitude towards wind farming is reminiscent of
the government's dismissal of the Apaches' spiritual and cultural
objections to the disruption of Mt. Graham-the proposed site for
an astronomical telescope; also a place sacred to the Apaches in
southeastern
Arizona-as
"religious,
magical,
fanatical
behavior."'2 6 This dismissal came in spite of the fact that the
spiritual understanding of the relationship
between the Apaches
21 7
and Mt. Graham was well-documented.
Avian field technicians assessed the potential avian impacts
for the Blackfeet Nation wind-power feasibility study.'
Three
students from the Blackfeet Community College were assigned to
observe and report on any bird deaths.'29 They reported that they
found none, but the report also includes anecdotal evidence of the
avoidance of the wind turbines by birds, intended to demonstrate
the safety of the wind turbines for raptors."' The report states
that "the eagles and hawks that were observed close to the
turbine site, often approaching the turbine, as if on a collision
course, only to eventually veer away, off to the side or over the
top of the blades."''
The following story is related in the summary:
During a visit by Dine Power representatives, a Tribal
member was driving the guests up the hill for a tour of the
123.
See id.
124.
U.S. DEP'T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE
ENERGY, THREE AFFILIATED TRIBES OF THE MANDAN, HIDATSA, AND ARIKARA NATION:
PROJECT SUMMARY (2004), available at http://www.eere.energy.gov/tribalenergy/
projects/fy04-3_affiliated.html.
125.
Id.
126.
Robert A. Williams, Jr., Essay on Environmental Justice: Large Binocular
Telescopes, Red Squirrel Pifiatas, and Apache Sacred Mountains: Decolonizing
Environmental Law in a MulticulturalWorld, 96 W. VA. L. REV. 1133, 1164 (1994).
127.
Id.
128.
U.S. DEP'T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE
ENERGY, PROJECTS ON TRIBAL LANDS: TITLE XXVI, BLACKFEET INDIAN TRIBE (1995-1998
PROJECT):
PROJECT
SUMMARY,
http'J/www.eere.energy.gov/tribalenergy/
title26/blackfeet-summary.html (last visited Apr. 13, 2006).
129.
Id.
130.
Id.
131.
Id.
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369
site. When the vehicle was a distance of perhaps 200 yards
from the turbine base, he noticed two very large red-tailed
hawks flying toward the turbine rotor. Hurrying the rest of
the way, the people became uneasy about what it appeared
might happen. The wind was coming from the southwest at
approximately 45-50 mph and the turbine rotor was at full
velocity.
As they got out of the truck, the two hawks had joined
each other, side-by-side, less than 50 feet directly upwind
from the spinning rotor. The birds remained stationary,
hovering in the high wind, in this position for 3 to 5
minutes. After this time, they dipped forward and peeled
off, each in a different direction, and settled into a glide at a
distance of approximately 0.25 mile. They each circled
lazily for the next 10 minutes, then glided away and out of
sight.
The conclusion drawn from direct and indirect
observation of raptor behavior at the turbine site is that not
only are the birds aware of the presence of the blades, but
they masterfully negotiate their way around
otherwise
132
dangerous obstacles posed by the installation.
However, the conclusion drawn notes that the wind turbine
is an "otherwise dangerous obstacle" without the masterful
negotiation of the raptors in that instance. 133 It is not clear who
related this story, but it is clear that the story contains no
conclusive proof that birds are aware of and avoid the wind
turbines. The tribe's view of this occurrence is unclear because
the report only gives the government contractor's conclusion
about the meaning of the observation.' But such an observation
should not be assumed to bear the imprimatur of tribal elders.
This story instead demonstrates a vestige of colonialism, not
unlike the history of treaty-making between the U.S. and the
tribes. 3 ' A few willing chieftains would sign the treaties, even
132.
U.S. DEP'T OF ENERGY, OFFICE OF ENERGY EFFICIENCY AND RENEWABLE
ENERGY, PROJECTS ON TRIBAL LANDS: TITLE XXVI, BLACKFEET INDIAN TRIBE (1995-1998
PROJECT):
PROJECT
SUMMARY,
http://www.eere.energy.gov/tribalenergy/title26/
blackfeetsummary.html (last visited Apr. 13, 2006).
133. Id.
134. Id.
135.
See, e.g., Elizabeth A.C. Thompson, Babbitt v. Youpee: Allotment and the
Continuing Loss
of Native American
Property and Rights to
Devise,
19 U. HAW. L. REV. 265, 290-91 (1997) (stating that the U.S. had tribal governments
enter into treaties whereby the tribes were "allowed" to keep the land not relinquished to
the U.S.). See also Steven Andrew Light & Kathryn R.L. Rand, Reconciling the Paradox of
Tribal Sovereignty: Three Frameworks for Developing Indian Gaming Law and Policy,
4 NEV. L.J. 262, 269 n. 46 (2003) ("During the treaty era, for instance, the federal
government often grouped separate Native American nations sharing common languages
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though they were not tribal officials or leaders, and Congress
would then ratify these treaties; the tribes were then unable to
rescind the signatures of the chieftains.'3 6
VIII. CONCLUSION
While the Anglo-American legal system does not address
Native American environmental, cultural, and spiritual concerns
for development of wind power, newer mechanisms for a process
that considers and respects tribal concerns could lead to a more
holistic policy in this area. This process can only be truly
appreciative of Native American culture if the parties
understand and value the significance and interrelatedness of
environmental, cultural, and spiritual concerns, and are willing
to preserve these values, even where they do not serve the
purposes of Anglo-American law.
Professor Robert Williams suggests that true collaboration
can never occur until environmental law is decolonized, or reshaped to encompass the concept of Native American spiritual
and cultural concerns:
[I]ndians have been required to conform to the dominant
society's values, without any recognition of the values that
might govern Indian social life. There are no alternatives by
which the great diversity within Indian communities and
across Indian country can be recognized and reflected in our
environmental law ....
Indians can only engage in the federal land use and
environmental regulatory process through cultural and
political institutions determined by the dominant society.
Of course, the irony of all this concern over the method for
incorporating Indians into the environmental regulatory
process is that even if a way could be found so that tribal
religious interests are adequately represented, our
environmental law is not required to respect or protect
those interests.""7
The incongruence of environmental law with spiritual,
cultural, and environmental concerns of tribal nations requires
the utilization of executive orders which address the
collaborative process, and environmental justice concerns to
encapsulate the consideration
of "place." Should this
collaboration be achieved, it must be recognized that the concerns
into a single 'tribe,' sometimes designating an otherwise nonexistent 'chief to facilitate
land giveaways or reservation administration.").
136. Id.
137.
Williams, Jr., supra note 126, at 1162-63.
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of tribal nations must be respected rather than conquered. Policy
makers must learn to avoid any approach that changes, defeats,
or minimizes beliefs and practices that serve to sustain tribal
culture and are essential to the continued existence of tribal
nations.
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